Texas Supreme Court Set to Consider Legislative Interference in Elections Administration

UPDATE: The plaintiffs in the case, Harris County v. Texas, filed a notice of dismissal ahead of the planned oral argument. On February 8, 2024, the court dismissed the case without prejudice.

Texas lawmakers and the state’s largest county are butting heads over how elections are run — and how far the legislature can go to seize control from county election administrators.

Oral arguments are scheduled for November 28 before the Texas Supreme Court in Harris County v. Texas, a case challenging a law that prohibits counties with more than 3.5 million residents from having an election administrator position. How did the legislature land on 3.5 million as the threshold? Only one Texas county fits the bill — Harris County, which is home to Houston.

Harris County found itself in the state legislature’s crosshairs after the 2020 general election, when the county’s clerk implemented policies to give voters flexible, safe ways to cast their ballots during the pandemic, including drive-thru and 24-hour voting. The clerk had also planned to send out mail ballot applications to all voters but halted that plan after the Texas secretary of state threatened legal action. In 2021, the Texas legislature passed Senate Bill 1, a restrictive voting bill that, among other things, criminalized election officials who send out unsolicited mail ballots and prohibited drive-thru and 24-hour voting.

After the 2020 election, the Harris County Elections Commission created an election administration position to oversee election-related duties. Since 1977, every county in Texas has had the option to decide whether to employ an election administrator appointed by a bipartisan commission or run its elections through a county clerk and tax assessor — elected, partisan positions. Critics of the change argued that shifting election duties away from elected officials to an appointed position undermined accountability to the public. Proponents pointed out that many other large metropolitan counties across the state ran their elections through an appointed administrator, streamlining the process of overseeing elections.

Last June, the legislature escalated its backlash against Harris County with the passage of Senate Bill 1750, the law at issue in this case, which abolished Harris County’s election administrator position. Every county except Harris continues to have the option of running its elections through either an elections administrator or through the county’s assessor and clerk. S.B. 1750 takes the unprecedented step of denying Harris County — and no other county — the authority to decide for itself how its elections operate.

Harris County sued the state of Texas, state attorney general, and the secretary of state to block the law. The county argued that the law violated a constitutional prohibition against the legislature passing “local or special laws” that target only particular jurisdictions and subject matters — including elections. The purpose of the prohibition is to prevent the legislature from granting special privileges and to ensure uniformity of law across the state.

The county argues that the law is unconstitutional because it applies to only Harris County — and will only ever apply to Harris County — and that there is no reasonable basis for targeting the county. In support of that argument, the county points to language in the law indicating it applies only to counties that meet the population threshold on September 1, 2023. Any county that surpasses 3.5 million residents after that date would be excluded from the law’s reach.

The defendants argue that the date merely indicates when the statute goes into effect, and thus, it may someday apply to other counties. In any event, the defendants say, the law is constitutional because there was a reasonable basis for the legislature’s focus on Harris County. That basis includes the county’s significant influence on statewide elections due to its size, the public’s perception that the county mismanages elections, and the county’s past issues administering elections — for example, some polling locations ran out of paper on Election Day in 2022.

Harris County counters that even if the defendants are right that the law can apply to other counties, the legislature’s justifications for the law do not rectify its constitutional deficiencies. As to the county’s statewide significance, Harris County argues that “it will always be true that larger counties have a greater effect on state elections than smaller ones” — and the state constitution’s drafters were “surely aware of this reality.” And the challenges Harris County faced in previous elections, the county argues, are routine in election administration.

On August 14, a trial court temporarily blocked the law. It also dismissed the state of Texas as a defendant but allowed the suit to proceed against the attorney general and the secretary of state in their official capacities. The remaining defendants appealed to the Texas Supreme Court under a state law allowing parties to appeal directly to the high court when a trial court grants or denies an injunction on the ground of the constitutionality of a state statute. The supreme court allowed the law to go into effect while the case is pending. As such, the Harris County clerk and tax assessor administered the election this past November.

Since 2020, threats, politicization, and violence around the election process have increased across the country. Election officials are targeted with death threats and harassment for simply doing their jobs. And, as this case illustrates, legislatures are interfering with the people and processes that make elections work. This case presents the Texas Supreme Court with the opportunity to clarify how far the legislature can go to intervene in local elections.

Jasleen Singh is a counsel at the Brennan Center for Justice.